Motion to Dismiss under CPLR 3211(a)(7) in New York

What Is a Motion to Dismiss under CPLR 3211(a)(7)?

Background

A demurrer is a pleading used to test the legal sufficiency of another pleading; it raises issues of law, not fact, and may be used to dismiss a complaint for failing to state a cause of action. (Civ. Prac. Law & Rules, § 3211(a)(7).)

How to Structure the Motion

A motion to dismiss pursuant to Section 3211(a)(7) of Civil Practice Law and Rules “may be used by a defendant to test the facial sufficiency of a pleading in two different ways. On the one hand, the motion may be used to dispose of an action in which the plaintiff has not stated a claim cognizable at law. On the other hand, the motion may be used to dispose of an action in which the plaintiff identified a cognizable cause of action but failed to assert a material allegation necessary to support the cause of action.” (Basis Yield Alpha Fund (Master) v. Goldman Sachs Group, Inc., 115 A.D.3d 128, 134-135, 980 N.Y.S.2d 21, 26-27 [1st Dept. 2014].) As to the latter, a defendant can submit evidence in support of the motion attacking a well-pleaded cognizable claim. (Rovello v. Orofino Realty Co., 40 N.Y.S.2d 314, 357 [1976].)

“When documentary evidence is submitted by a defendant ‘the standard morphs from whether the plaintiff has stated a cause of action to whether it has one.’” (Basis Yield Alpha Fund (Master) v. Goldman Sachs Group, Inc., 115 A.D.3d 128, 134-135, 980 N.Y.S.2d 21, 26-27 [1st Dept. 2014].) “If the defendant’s evidence establishes that the plaintiff has no cause of action (i.e., that a well-pleased cognizable claim is flatly rejected by the documentary evidence), dismissal would be appropriate.” (Id.)

Response

In order to survive a dismissal motion under this subsection, the complaint “must contain allegations concerning each of the material elements necessary to sustain recovery under a viable legal theory.” (MatlinPatterson ATA Holdings LLC v. Federal Express Corp., 87 A.D.3d 836, 839 [1st Dept. 2011].) However, “bare legal conclusions with no factual specificity” are “insufficient to survive a motion to dismiss.” (Godfrey v. Spano, 13 N.Y.3d 358, 373 [2009].) “While it is axiomatic that a court must assume the truth of the complaint’s allegations, such an assumption must fail where there are conclusory allegations lacking factual support.” (Dominski v. Frank Williams & Son, LLC, 46 A.D.3d 1443, 1444 [2007].)

Plaintiffs should be afforded an opportunity to amend the complaint. (Murray v. New York, 372 N.E.2d 560, 562 [1977].)

The Court’s Decision

On a motion to dismiss pursuant to Section 3211(a)(7) of Civil Practice Law and Rules, a court’s role is ordinarily limited to determining whether the complaint states a cause of action. (Frank v. DaimlerChrysler Corp., 292 A.D.2d 118 [1st Dept. 2002].) The determination is not whether the party has artfully drafted the pleading, but whether deeming the pleading to allege whatever can be reasonably implied from its statements, a cause of action can be sustained. (Stendig, Inc. v. Thom Rock Realty Co., 163 A.D.2d 46 [1st Dept. 1990]; Leviton Manufacturing Co., Inc. v. Blumberg, 242 A.D.2d 205 [1st Dept. 1997].) A motion to dismiss will be granted where the facts alleged in the complaint fail to allege the required elements of any cause of action. (Morone v. Morone, 50 N.Y.2d 481, 484 [1998].)

A motion to dismiss should be granted unless “from [the pleading’s] four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law.” (McGill v. Parker, 179 A.D.2d 98, 105 [1st Dept. 1992].) “[T]he court must accept the facts as alleged in the complaint as true, accord plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory.” (Leon v. Martinez, 84 N.Y.2d 83, 87-88 [1994].) The complaint must be afforded liberal construction. (Id.)

“[W]hether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove its claims, plays no part in the determination of a pre-discovery motion to dismiss for failure to state a cause of action.” (Endless Ocean, LLC v. Twomey, Latham, Shea, Kelley, Dubin & Quartararo, 113 A.D.3d 587 [2nd Dept. 2014].)

Documents for Motion to Dismiss under CPLR 3211(a)(7) in New York

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Brooklyn Atlantic Servicing Llc v. 332 A'Bantu Realty, Inc., Mutale Kanyanta, The New York State Department Of Taxation And Finance, Lucia Rivieccio, Joanna Gulik, Meat At The Park Llc, Karen Begley, John Doe Real Property - Mortgage Foreclosure - Commercial document preview

AFFIRMATION

9 pages

INDEX NO. 502719/2019 NYSCEF DOC. NO. 128 RECEIVED NYSCEF 04/25/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS x Index No. 502719/2019 BROOKLYN ATLANTIC SERVICING LLC, AFFIRMATI…

Case Name Brooklyn Atlantic Servicing Llc v. 332 A'Bantu Realty, Inc., Mutale Kanyan…